The Government’s new Principles - How useful are the Government’s 2016 Consultation Principles?

In 2012, the Coalition Government took us all by surprise and tore up the 2008 Code of Practice on consultations and replaced them with a hastily-drafted set of Principles. Practitioners huffed and puffed; in the Institute we produced a rather heavyweight commentary which we published as a Briefing Paper.

Forgive us for having a sense of deja-vu, but in January a new set of Principles was published by the Cabinet Office, but many of the circumstances are different:

• In 2012, many working on public engagement had grown accustomed to the previous Guidelines and were sorry to see them go

• The replacement Principles were not well-written and had serious omissions
• There continued to be uncertainty about the scope of the Principles and whether they were meant to apply to all public bodies, or just to Whitehall departments

A Select Committee known as The House of Lords Secondary Legislation Scrutiny Committee took issue with them, and acting as the conscience of many others with reservations, started a protracted dialogue with Oliver Letwin, the Minister who has owned this hot potato for some years. The latest Principles are essentially a continuation of that discussion. For that reason, it is immediately obvious that a clear attempt has been made to address those issues which the Committee highlighted.

In essence, the new Principles are concise and structured around eleven uncontroversial statements. They show signs of legal advice and have clearly been drafted to take account of the Gunning Principles. The unhelpful 2-12 weeks reference is dropped, and the duration of consultations now has to be “proportionate”. The Minister gave evidence before the Select Committee on 19 January and undertook to make some further changes, so we expect some amendments soon. Irrespective of these, the Institute will prepare a detailed commentary and make this generally available.

For now we need to note three separate aspects:

1. These Principles only cover Central Government departments and the language is about legislation and policy-making. We recognise that many public bodies found it convenient to follow the 2012 Principles, but the wording of their successors may be less helpful. In comparison with the detailed Guidance applicable to, say, the NHS, these Principles will appear vague and generalised.
2. At the end of the Principles are the words “This document does not have legal force and is subject to statutory and other legal requirements.” We find this somewhat disingenuous, as if Government lawyers have not noticed the trend for Courts to accept the doctrine of legitimate expectation when claimants try to insist that public bodies should adhere to the rules which they are supposed to follow. We understand that the Treasury Solicitor has prepared a Briefing for departmental legal advisers, and we expect, at the very least, that it will urge caution in departing from the Principles.
3. Oliver Letwin has told the Select Committee that he is keen to “change the culture” of Government consultations, and finally move away from the tick-box mentality. We wish him good luck as he says he will do this by monitoring performance against these Principles – something we have never persuaded previous administrations to undertake. He has committed to produce an Annual Report, and that we will also await with interest.

The truth is that Government Guidelines, be they short or long, have less influence upon consultation than their authors imagine. What drives routine practice is the threat of Judicial Review if significant stakeholders mount a legal challenge. Whilst it is true that the new Principles match the law of consultation closer than earlier versions, they are silent on many of the matters that have exercised the Courts in recent years. They say nothing about the development of options, little or nothing about the interplay with Equality legislation and provide no help to those wondering to what extent they can rely on new technology and online methods. The Principles address situations where consultation is to go ahead – and is silent about the context within which it happens.

It was Lord Reed, in the Haringey Supreme Court case, who pointed out that context is in fact all-important. For civil servants and Ministers now duty-bound to follow this latest document, there is much more they need to bear in mind if the objectives of a meaningful consultative dialogue are going to be met.

TRIGGER POINTS

• The latest Government Principles were published by the Cabinet Office on the GOV.uk website on 14 January http://bit.ly/1Qbc0Km.
• On Tuesday 1 March we will organise an in-depth webinar on the new Consultation Principles. If you would like to register, send an email to hello@consultationinstitute.org or Tweet to @TCInews.
• A transcript of Oliver Letwin's evidence to the Secondary Legislation Scrutiny Committee is available here http://bit.ly/1KCC9kj.
• Lord Reed’s judgment is from R (ex parte Moseley) v London Borough of Haringey [2014] UKSC 56.
• The doctrine of legitimate expectation is fully discussed in the Institute's Law of Consultation training course and also in its Law of Consultation - Practical Implications in-house Workshop http://bit.ly/1ndpjP7. Contact Martin Roach on 01767 318350 or on hello@consultationinstitute.org for more information.

This is the 290th Tuesday Topic; a full list of subjects covered is available for Institute members and is a valuable resource covering so many aspects of consultation and engagement.